The Paralegal and Voir Dire
The first step of the actual trial process for a jury trial is jury selection. Jury selection whittles down a large pool of potential jurors to 6 or 12 final jurors and alternates through a question-and-answer process called voir dire. Jury selection plays a crucial role in getting a fair and impartial jury for the trial. As a paralegal, you should assist your supervising attorney in preparing voir dire questions in advance to use with the jury pool, questions that may very well be key to the outcome of the case.
Three primary goals of voir dire include the following:
- Eliciting information about the biases of potential jurors
- Educating the jury about factual and legal concepts of the case
- Establishing a rapport with the jury
In important cases, your firm may call in a jury selection specialist to investigate the entire pool of potential jurors, which could consist of hundreds of people. The jury consultant advises attorneys on which jurors are likely to be sympathetic to one party or the other.
Paralegals with psychology or communication backgrounds often operate freelance businesses that specialize in jury selection consultation.
During voir dire, attorneys ask the members of the jury pool questions that address their qualifications to sit as jurors. Given a large jury pool, attorneys usually direct questions to the whole group. Based on the responses they get, the attorneys may then question individuals. Although lawyers never want to intentionally embarrass a potential juror, sometimes they have to delve into someone’s personal life. Personal inquiries help your firm weed out those jurors who might view your client’s case unfavorably.
Following is a sample list of voir dire questions directed to the group of potential jurors that you can adapt to fit many criminal or civil cases. Naturally, you alter the questions depending on the subject matter of any particular case.
- Is there anyone here who hasn’t read the juror’s handbook?
- Has anyone sat on a jury before?
- Has anyone heard anything about this case?
- <Names of individuals> may be called as witnesses in this case. Does anyone know any of these potential witnesses? Does anyone know the plaintiff, the defendant, the attorneys, or the judge in this case?
- This event allegedly occurred in <name of area>. Does anyone live near or is anyone familiar with this area?
- Has anyone ever been involved in or witness to the types of events surrounding this case? Does anyone have relatives or close friends who have been involved in or witnesses to the types of events surrounding this case?
- Does anyone have a personal interest in the outcome of a case of this nature?
- For criminal trials: Is anyone employed in law enforcement or in the justice system?
- For criminal trials: Has anyone ever had a bad or unpleasant experience with a police officer?
- Does anyone have religious, personal, or philosophical views that would interfere with sitting as a juror in this particular case?
- Does anyone have strongly held opinions about the nature of this case that would prevent you from following the law in this case?
- Is there anyone who cannot agree to follow the law and instructions as given to you by the court, whether you personally agree with them or not?
- Is there anyone who doesn’t understand that a juror’s job is to weigh the testimony of each witness, which means determining truth in the event that the parties disagree on an account of the facts?
- This case may involve some complicated facts. Is there anyone who has a problem with the time it may take to sift through testimony and evidence to attempt to sort fact from fiction?
- Would you refrain from voicing your opinion if it were unpopular with other jurors?
- Would you listen fairly to the viewpoints of other jurors and give them a chance to persuade you?
- Is there anything about this trial, as it has been described to you, that makes anyone uncomfortable about sitting as a juror?
- Can anyone think of any reason why you could not be a fair and impartial juror?
After attorneys have questioned prospective jurors about the case, they may exercise challenges to excuse those jurors whose biases would make them least favorable to the client’s position. You can assist the attorney so that she can intelligently challenge jurors for bias or otherwise. State law governs how attorneys may challenge prospective jurors.
Challenges to prospective jurors fall into one of three categories:
- Peremptory challenges require no reason to excuse jurors.
- Challenges for cause must be made for a specific reason.
- Challenges to the array involve the removal of the entire panel of jurors.
Rebelling without a cause: Peremptory challenges
Peremptory challenges, as the name implies, are those that don’t require the lawyer to give a reason for excusing a prospective juror. The juror could be giving the lawyer funny looks or could be overly friendly with the opposing lawyer. Your supervising attorney may exercise the peremptory strike because he has a gut feeling that a juror would be bad news for the client.
There are lots of reasons why attorneys may not want a particular juror sitting in judgment of their clients. A lawyer can challenge a juror for reasons ranging from the juror’s wearing too much makeup to the juror’s not being able to converse in complete sentences. However, the U.S. Supreme Court has held in the case of Batson v. Kentucky (1986), that a lawyer can’t exercise a peremptory challenge to a prospective juror based on race, unless there is some other race-neutral reason for excusing that juror. The courts have extended Batson to also apply to challenges based on gender and ethnic background.
You don’t get to have as many peremptory challenges as you want — otherwise, there would probably never be enough jurors in the pool to satisfy each side in a lawsuit. Depending on whether you’re involved in a civil or criminal case, each side to the lawsuit gets a certain number of peremptory challenges. For example, some states allow the parties to exercise three peremptory strikes in a civil case, and attorneys in a criminal case may have as many as six or more peremptory challenges. If the case is heard in a court of limited jurisdiction, or if the final jury panel consists of 6 instead of 12 jurors (for a criminal misdemeanor case), the parties may be limited to only three strikes. If there are two or more defendants, each defendant may get an additional challenge, and the prosecution might get an extra one as well.
Making a good excuse: Challenges for cause
Each side to a lawsuit is entitled to an unlimited number of challenges for cause. A challenge for cause is one that lawyers use to kick off a prospective juror for bias, whether implied or actual. Implied bias shows up when, for example, a potential juror is a family member or close friend of one of the parties. Actual bias occurs when a potential juror states that she can’t be fair to one or both of the parties. One classic example might be a rape victim who is called to sit as a juror in a criminal rape case. Although the juror could conceivably be fair, it’s far more likely that she would have an extremely difficult time hearing the facts of the case and keeping them separate from her own experience.
Each party has an unlimited number of challenges for cause. As long as the attorney can articulate a clear reason why a particular juror can’t be fair, the court will excuse that juror for cause.
Jurors who hold preconceived ideas about the nature of a case may not necessarily be disqualified for bias. If they demonstrate that they can set aside their prejudices to render a fair verdict, the court may not see cause to excuse these jurors.
Dismissing the kit and caboodle: Challenges to the array
A challenge to the array occurs when one of the parties requests the court to disqualify the entire pool of prospective jurors. A challenge to the array is also known as a challenge to the venire. A party may exercise a challenge to the array only in highly unusual circumstances. You might see this type of challenge at play when irregularities or illegalities occur — for example, if the clerk or jury administrator uses some means other than random selection or if he purposely calls in a panel of completely biased prospective jurors. Challenges to the array don’t happen very often; if you ever see this occur in one of your attorney’s cases, consider buying a lottery ticket!
Monitoring the jury pool
As the lawyers exercise their challenges with jurors and particular jurors are stricken from the panel, new jurors from the pool, or venire, may be brought forward to take their place and the makeup of the jury box changes. You can help your supervising attorney during this process by noting potential jurors’ reactions to questions and observing how they relate to attorneys for both parties. And, while the attorney focuses her attention on questioning one prospective juror, you can watch the reactions of the others.
You may keep track of the panel for the lawyer by drawing a schematic juror seating chart. When a successful challenge has removed a particular juror from the box, you write the name of the next juror in that same location in the box. This allows your supervising attorney to always know which jurors are sitting on the panel at any one time.
The following figure is one example of a schematic diagram you could use to assist the lawyer in the jury selection process. The jury panel seating chart is also available online.
Your supervising attorney may also rely on software to assist with voir dire. Existing programs help attorneys keep track of juror and offer predictions regarding a prospective juror’s potential biases.